Did the Arkansas AG certify the ballot title for the Arkansas Government Disclosure Act of 2024?
Plain-English summary
This is the certified version of the citizen-initiated transparency act that the AG had previously rejected three times in January 2024 (Opinions 2024-009, 2024-011, 2024-012) over a "preemptive repeal" clause. Couch and Standerfer removed that clause and resubmitted. The AG substituted a polished popular name and a long, clarifying ballot title and certified the measure for petition circulation.
The certified popular name is "The Arkansas Government Disclosure Act of 2024." The certified ballot title summarizes the act as:
- Repeal of part of Act 883 of 2023. The certified ballot title leads with the repeal of Act 883's provision authorizing school boards, superintendents, and their attorneys to meet privately to discuss pre-litigation, litigation, settlement, contract disputes, and real property. This was the trigger for the entire reform effort.
- Three-day disclosure clock. The custodian must respond promptly with a date and time for compliance within three working days.
- Failure-to-respond presumption. If the custodian does not respond within three working days, the request is deemed denied.
- Open-meetings expansion. Public meetings must allow the public to attend and hear the governing body's "meaningful discussion and deliberation." Meeting notices must be online at least 48 hours in advance for any body that maintains a website or social-media page.
- Expanded definition of "public meeting." Communications between two or more members of a governing body for the purpose of exercising a responsibility, authority, power, or duty of the governing body are public meetings. So is a series of communications by an agent of the governing body polling members for support of an official action.
- Cybersecurity executive session. Bodies may meet in executive session to discuss responses to cybersecurity threats.
- Attorney's fees and litigation expenses. A plaintiff who substantially prevails (after trial, through voluntary compliance, or through agreed resolution) recovers reasonable fees and expenses, regardless of whether the defendant's position was substantially justified.
- Civil penalty with personal liability. A trial court must assess at least $1,000 personally payable by a knowing-violator custodian or member.
- Three-month security-records release rule. Records over three months old reflecting security planning for constitutional officers, the Governor's Mansion, and the State Capitol must be released unless the new Commission finds confidentiality essential to ongoing services.
- Government Transparency Commission. A five-member commission appointed by majority and minority leadership in each chamber and the Lieutenant Governor, with authority to interpret and enforce the open-records and open-meetings laws.
- Definitions. Adds defined terms for "cybersecurity," "government transparency," "minority party," and "public notice."
- Severability. Each provision is severable.
The AG also added an unusual cautionary footnote: in light of the act's significant subject matter and complexity, sponsors should be aware that "experience has shown a correlation between the length and complexity of initiated measures and their susceptibility to a successful ballot-title challenge." The AG was certifying the title, but flagging that long ballot titles invite court review.
The mandatory canvasser-and-signer instructions under A.C.A. § 7-9-108 must precede every petition before circulation.
What this means for you
Ballot initiative sponsors
This opinion is the textbook case for how to recover from a § 7-9-107(e) rejection. The sponsors took the AG's reasoning in Opinion 2024-009 seriously, removed the single defective provision, and resubmitted clean. The AG substituted and certified within his ten-day statutory window.
If you are drafting a long, complex initiated act, expect the AG's substituted ballot title to add definitions and clarify provisions you might have left implicit. The certified version here is substantially longer and more detailed than the sponsors' submitted version. The AG's substitution authority is broad.
Read the AG's footnote carefully. Long ballot titles are vulnerable to court challenge. Even a certified ballot title is not immune; the Arkansas Supreme Court can later strike it down on a sufficiency challenge. Plan for that risk.
Government transparency advocates
The Arkansas Government Disclosure Act of 2024, as certified, is a comprehensive FOIA-reform package. It would, if enacted, partially repeal Act 883 of 2023 (the school-district executive-session expansion), tighten the FOIA response clock, expand the open-meetings law to cover serial communications, and create a new enforcement commission with civil-penalty authority. Track the petition's signature progress with the Secretary of State after circulation began.
The act addresses a specific 2023 legislative dispute. Act 883 had authorized school boards, their superintendents, and attorneys to discuss certain matters outside public observation. This certified ballot title leads with that repeal, which signals it as the central organizing motivation for the act.
School district officials
If this act becomes law, the executive-session authorization in Act 883 of 2023 (allowing school boards, superintendents, and their attorneys to discuss pre-litigation, litigation, settlement, contract disputes, and real property privately) is repealed. Track the petition's progress and the November 2024 election. If approved, plan for resumption of open-meeting discussions of those topics.
FOIA practitioners
The act's three-day response clock, deemed-denial rule, and personal civil-penalty for knowing violations would substantially change FOIA litigation. The Government Transparency Commission would be a new administrative review path that could reduce the volume of court litigation. Track this measure's electoral fate and prepare to update FOIA-compliance training materials if it passes.
Election officials
A petition under this certified popular name and ballot title may be circulating. The certified popular name and certified ballot title are what must appear on petitions; circulating under any other name or title invalidates signatures.
Common questions
Did this measure pass?
The opinion only certifies the popular name and ballot title for circulation. Whether the sponsors collected enough signatures, whether the petition was sufficient, and whether the act passed at the November 2024 election are separate questions handled by the Secretary of State and the courts. Check the Secretary of State's records or the November 2024 election results for the outcome.
Why does the certified ballot title open with the Act 883 repeal?
Because that was the catalyst for the entire reform effort. The 2023 General Assembly's expansion of school-board executive-session authority was the immediate provocation; the broader FOIA reforms followed.
What is the relationship between this act and the Arkansas Government Disclosure Amendment (Opinion 2024-005)?
Couch and Standerfer pursued both paths in parallel: a constitutional amendment (certified in Opinion 2024-005) and an initiated act (certified here). The amendment would lock in transparency rights against legislative repeal; the act would change the statutory FOIA without amending the constitution. They could appear on the ballot together or separately.
What is the Arkansas Government Transparency Commission?
A new five-member body the act would create. Its members would be appointed by the President Pro Tempore of the Senate, the Speaker of the House, both chambers' minority leaders, and the Lieutenant Governor. The Commission would interpret the open-meetings and open-records law, help citizens obtain compliance, and sanction violators. An administrative appellate process would review its decisions.
What is the AG warning about in his cautionary footnote?
Long ballot titles are more likely to be struck down on sufficiency challenge in the Arkansas Supreme Court. Even after AG certification, opponents can sue under Ark. Const. art. 5, § 1 to invalidate the petition based on a misleading or insufficient ballot title. The longer and more complex the act, the more attack vectors.
Background and statutory framework
A.C.A. § 7-9-107. The AG's three-option response under § 7-9-107(d): certify, substitute and certify, or reject and instruct redesign. Substitution authority is broad and the AG used it heavily here.
A.C.A. § 7-9-108. Mandatory canvasser-and-signer instructions on every petition before circulation.
Ark. Const. art. 5, § 1 (Amendment 7). Initiative power and the full-text requirement.
Act 883 of 2023. The statute the act would partially repeal. Authorizes school boards, superintendents, and their attorneys to discuss pre-litigation, litigation, settlement, contract disputes, and real property outside public observation.
Prior opinions. 2023-116, 2023-127, 2024-009, 2024-011, 2024-012 addressed earlier versions of the same act. The AG's full reasoning on the rejected preemptive-repeal clause is in Opinion 2024-009.
Cautionary footnote. AG Op. 2000-137 collects prior cautions to sponsors about the relationship between ballot-title length and successful challenge.
Citations
- A.C.A. § 7-9-107 (AG review of ballot titles)
- A.C.A. § 7-9-108 (canvasser-and-signer instructions)
- Ark. Const. art. 5, § 1 (Amendment 7)
- Act 883 of 2023 (school-district executive-session statute, partially repealed by the act)
- Ark. Att'y Gen. Ops. 2023-116, 2023-127, 2024-005, 2024-009, 2024-011, 2024-012, 2023-038, 2000-137 (related opinions)
Source
Original opinion text
Opinion No. 2024-020
January 29, 2024
David A. Couch
1501 North University Avenue, Suite 219
Little Rock, Arkansas 72207
Jen Standerfer
2302 Southwest Nottingham Avenue
Bentonville, Arkansas 72713
Dear Mr. Couch and Ms. Standerfer:
I am writing in response to your request, made under A.C.A. § 7-9-107, that I certify the popular name and ballot title for a proposed initiated act. In Opinion Nos. 2023-116 and 2023-127, I addressed prior versions of your proposed initiated act. You have now revised the text of your proposal and submitted it for review.
My decision to certify or reject a popular name and ballot title is unrelated to my view of the proposed measure's merits. I am not authorized to consider the measure's merits when considering certification.
- Request. Under A.C.A. § 7-9-107, you have asked me to certify the following popular name and ballot title for a proposed initiated amendment to the Arkansas Constitution:
Popular Name
The Arkansas Government Disclosure Act.
Ballot Title
An Initiated Measure Amending the Arkansas Code to Create the "Arkansas Government Disclosure Act"; To Amend the Freedom of Information Act of 1967 to Protect Citizens' Interest in Government Transparency, To Protect Citizens' Privacy Interests, and To Ensure the Government Shares Information with the Public Freely; To Require That Public Meetings be Conducted in a Manner that Allows the Public to Attend and Hear the Governing Body's Meaningful Discussion and Deliberation on Official Business; To Require Governing Bodies to Publish Notice of Meetings; To Create the Arkansas Government Transparency Commission to Help Citizens Obtain Compliance With, To Issue Opinions Concerning, And to Sanction Violations of Government Transparency Laws; To Repeal the Provision of Law Allowing a School Board of Directors, Superintendent, and Their Attorney From Holding a Meeting Outside of Public Observation to Discuss Pre-Litigation, Litigation, Settlement, Contract Disputes, and Real Property; To Define "Cybersecurity", "Government Transparency", "Minority Party", and "Public Notice"; To Clarify That Public Records Shall Be Disclosed Within Three (3) Days of Their Request, And That the Custodian Must Explain the Reason for Any Nondisclosure and Specify the Date and Time for Compliance; To Clarify that a Communication Between Two (2) or More Members of a Governing Body For the Purpose of Exercising a Responsibility, Authority, Power, or Duty of the Governing Body Concerning Official Action Shall be Open to the Public and Available for Public Attendance; To Clarify That A Series Of Communications Between an Agent, Employee, or Person Paid by the Governing Body and One (1) or More Members of the Governing Body to Poll the Votes or Support of the Governing Body Concerning Official Action Shall Be Open to the Public and Available for Public Attendance; To Allow Recovery of Attorney's Fees, Expenses, and Costs by a Plaintiff When the Plaintiff Substantially Prevails in an Action for a Violation of Law Concerning Government Transparency; To Create a Civil Penalty With Personal Liability for a Person who Violates the Freedom of Information Act of 1967; To Require Disclosure of Public Records That Are More Than Three (3) Months Old and Reflect the Planning or Provision of Security Services to Constitutional Officers and Their Families, The Governor's Mansion, and the State Capitol Shall Be Disclosed Unless the Commission Finds that Confidentiality is Essential to the Ongoing Security Service; To Provide for the Qualifications, Procedures, Funding, Authority, and Functions of the Arkansas Government Transparency Commission; To Establish the Arkansas Government Transparency Commission With Five (5) Members Appointed by the President Pro Tempore of the Senate, the Speaker of the House of Representatives, the Minority Leader of the Senate, the Minority Leader of the House of Representatives, and the Lieutenant Governor; To Provide an Appellate Process for Review of Decisions Made by the Arkansas Government Transparency Commission; And To Provide That the Provisions of the Act are Severable.
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Rules governing my review. In Opinion No. 2023-116, I explained the rules governing popular names and ballot, and the rules governing my review of proposed measures. Rather than repeat those explanations, I incorporate them here by reference.
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Application. Having reviewed the text of your proposed initiated act, as well as your proposed popular name and ballot title, I substitute and certify the following popular name and ballot title:
Popular name:
The Arkansas Government Disclosure Act of 2024
Ballot title:
An initiated act repealing a provision of Act 883 of 2023, which allows a school's board of directors, superintendent, and attorney to hold a meeting outside public observation to discuss pre-litigation, litigation, settlement, contract disputes, and real property; providing that a public record is exempt from disclosure to the extent that it contains information in which an individual has a substantial personal privacy interest; providing that, if access to a public record is not provided immediately upon request, the custodian must promptly write the requester explaining why and providing a time and date within three working days of the request that the responsive records will be made available; providing that a custodian's failure to respond to a request for public records within three working days of the date of the request is considered a denial of the request, unless the custodian's time to respond has been extended by the Arkansas Government Transparency Commission; requiring that all public meetings be conducted in a manner that allows the public to attend and hear the governing body's meaningful discussion and deliberation on official business; requiring that the time, place, and date of regularly scheduled public meetings be published online at least 48 hours before the meeting takes place if the governing body holding the meeting owns or maintains a website or social-media page; defining "public meeting" to include, without limitation, a communication between two or more members of a governing body for the purpose of exercising a responsibility, authority, power, or duty of the governing body concerning official action; defining "public meeting" to also include, without limitation, a series of communications between an agent, employee, or person paid by the governing body and one or more members of the governing body to poll the votes or support of the governing body concerning official action; permitting a governing body to meet in executive session to discuss the response to the terms of a demand affecting the cybersecurity of a government entity; providing that a plaintiff in a lawsuit about open records or open meetings may be awarded reasonable attorney's fees and other litigation expenses if a court finds that, regardless of whether the defendant's position was substantially justified, the plaintiff has substantially prevailed (1) after a trial on the merits, (2) through a defendant's voluntary compliance, or (3) through an agreed resolution with a defendant; requiring a trial court to assess a civil penalty of at least $1,000 to be personally payable by a custodian or member of a governing body who knowingly fails to comply with Arkansas's laws governing open meetings or open records; requiring the disclosure of public records that are more than three months old and that reflect the planning or provision of security services to constitutional officers and their families, the Governor's mansion, and the State Capitol, unless the Arkansas Government Transparency Commission finds that confidentiality is essential to the ongoing security service; creating the Arkansas Government Transparency Commission to interpret, help obtain compliance with, and sanction violations of Arkansas's laws governing open meetings and open records; providing that the Arkansas Government Transparency Commission shall be composed of five members, with one appointed by each of the following: the President Pro Tempore of the Senate, the Speaker of the House of Representatives, the minority leader of the Senate, the minority leader of the House of Representatives, and the Lieutenant Governor; providing for the qualifications, procedures, funding, authority, and functions of the Arkansas Government Transparency Commission; providing an appellate process to review decisions of the Arkansas Government Transparency Commission; defining (1) "cybersecurity" as the measures taken to achieve protection against the criminal or unauthorized use of electronic data, (2) "government transparency" as the government's obligation to share information with its citizens or deliver information to citizens, (3) "minority party" as the political party who holds the second greatest number of members in the governmental body to which the members are elected, and (4) "public notice" as notice distributed to the general public; and providing that the provisions of this initiated act are severable.
While the foregoing have been substituted and certified, I believe that, in light of the significance of the subject matter undertaken and the potential complexity and far-reaching effects of this proposal, a cautionary note is warranted. You should be aware that experience has shown a correlation between the length and complexity of initiated measures and their susceptibility to a successful ballot-title challenge. Any ambiguity in the text of a measure could lead to a successful court challenge. Significant changes in law often have unintended consequences that, if known, would give voters serious ground for reflection. Further, since your initiated act is so lengthy, it requires a lengthy summary. As several of my predecessors have noted when certifying certain lengthy and complex ballot titles, the Court has repeatedly warned sponsors of statewide measures about their ballot titles' length and complexity. In Opinion No. 2023-038, I summarized the Court's decisions on the significance of a ballot title's length and complexity.
Under A.C.A. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Arkansas Constitution and the associated penalties for violations. I have included a copy of the instructions that should be incorporated into your petition before circulation.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General